僞裝都給과 不法派遣에 있어 雇傭關係 - 대상판결: 서울중앙지방법원 2005. 4.28 선고 2004가합8635 판결(㈜아이캔 사건) -

With the enactment of 'Temporary Work Law' in 1998, the business dispatching employees was legitimated. Different from the typical form of employment, 'direct employment' where 'employment' coincides with 'use', labor dispatch takes a form of 'indirect employment' under which the direct party to the employment contract is separated from user-employer to whom labor is directly provided. Companies using dispatched workers can lower the cost comparing to direct employment, take less responsibilities under labor laws and respond flexibly to the temporary demand of personnel or the needs for professionals. On the contrary, before and since the enactment of 'Temporary Work Law', there have been concerns over the possibilities that labor dispatch can be used as a method of avoiding employer's responsibilities, deteriorate employment conditions and cause insecurities of employment. In this regard, for the purpose of protecting working conditions and pursuing employment securities of dispatched workers, Temporary Work Law has regulated conditions on the permission to labor-dispatching companies, restricted dispatching period, scope of works allowed to perform by dispatched workers, etc., and construed dispatched works used by a user-employer for two years or more as regular workers of the user-employer. All of the above measures were taken to pursue employment securities of dispatched workers. However, even after the enforcement of the Temporary Work Law, illegal dispatches are still existing, and in particular, 'Disguised Outsourcing' which is used by user-employers to avoid the application of Temporary Work Law by disguising contract relationship as undertaking, has been a huge social problem. This paper will review and examine whether constructive employment provided for in Section 6.3 of Temporary Work Law can be applied to 'Disguised Outsourcing' and illegal dispatches. Currently, judgments made by courts and Labor Relations Commission have been diverged, and decisions made even within an organization have not been consistent. Such divergences and inconsistencies are caused by ambiguous rules adopted for the decisions on 'Disguised Outsourcing', such as public releases of the Ministry of Labor, suspicious reliability on such rules, and inconsistent applications of the rules by courts and Labor Relations Commission. To address the above issues, it is necessary to stipulate expressly whether the constructive employment provision applies to 'Disguised Outsourcing' and illegal dispatches. Further, as to identifying 'Disguised Outsourcing', characteristics unique to undertakings, or undertakings equivalent should be taken into considerations.